Investigators into alleged crimes by former Anglo Irish Bank chairman Sean Fitzpatrick used “unlawful" practices when taking witness statements, his trial has heard.
Lawyers for Mr FitzPatrick (68), who is accused of misleading auditors about multi-million euro loans, have said that statements from witnesses from the auditors were produced as a result of coaching and cross-contamination between witnesses.
On day 72 of the trial in Dublin Circuit Criminal Court, the jury saw a draft statement from Vincent Bergin, the audit manager for Anglo, with numerous changes, including insertions and deletions of entire paragraphs, suggested by investigators.
The evidence emerged during the fourth day of defence cross-examination of Kevin O'Connell, a legal advisor with the Office of Director of Corporate Enforcement (ODCE), who dealt with witnesses from EY (formerly Ernst & Young), Anglo's auditors from 2002 to 2008.
The document titled “draft statement by Vincent Bergin” and dated November 1, 2010, was circulated to a number of people in the ODCE, including Mr O'Connell and his then boss, Paul Appleby, the director of corporate enforcement.
These people suggested changes to the document and Mr O'Connell said he then distilled or synthesised “the shared viewpoint” that was finally settled on.
The jury was shown various versions of the document with new sections inserted, other sections crossed out or deleted, and others marked with the words “drop” or “delete”.
Bernard Condon SC, defending, compared the process of producing the statement to the “hokey cokey”.
“It goes in and it goes out. The statement is just shaken out. A meeting of bits going in and bits going out,” he said.
Mr O'Connell agreed the process was wrong and inappropriate. Mr Condon told the court that rulings by Judge Mary Ellen Ring during the first trial in May 2015 and by Judge John Aylmer during the current trial found that it was an unlawful practice.
He said it was unlawful because it meant the jury never get to hear what the witness might have said in an unvarnished statement and not produced after they had being coached.
Mr FitzPatrick of Whitshed Road, Greystones, Co Wicklow has pleaded not guilty to 27 offences under the 1990 Companies Act. These include 22 charges of making a misleading, false or deceptive statement to auditors and five charges of furnishing false information in the years 2002 to 2007.
Mr O'Connell said he couldn't quibble with counsel's characterisation of one particular ODCE insertion as “outrageous” .
The paragraph states: “I regard the letter of representation in any audit as a statement made to us...which conveys information...which we require under the Companies Act”. Counsel said the exact wording ended up in the final statements of EY auditors Mr Bergin and Kieran Kelly.
“It comes out of the mouth of the ODCE and is put into the mouth of Vincent Bergin. It is wrong, wrong, wrong,” he said'
“It's the poisoning of the pool. It moved from ODCE to Vincent Bergin and it gets into Kieran Kelly's statement.”
Both Mr Bergin and Mr Kelly are due to give evidence later in the trial.
Mr O'Connell said he accepted now that the process was wrong but said it was his honestly-held belief at the time that the final statements represented the considered view of both witnesses.
The jury saw one typed comment, attributed to Mr Appleby, on a version of the statement and stating: “Is Mr Bergin's answer not likely to be very unfavourable. Accordingly are we wise to suggest this?”
Counsel submitted that this comment was contrary to the duty of an investigator to seek out evidence as to the innocence as well as guilt of suspects. Mr O'Connell agreed that it was a wrong thing to say and he regretted that he did not know this at the time and did not object to it when it was said.
Another comment attributed to Mr Appleby states: “I don't think we should suggest an answer. Mr Bergin may wish to withdraw the statement or revise it, which would suit us better”.
Mr Condon said this comment was not indicative of an impartial investigation. “It's quite wrong for Mr Appleby to take this out because you might get a better answer,” counsel submitted. Mr O'Connell agreed.
“There are serious dangers in telling people what to say and in writing it for them. This is a person's statement, presented to the defence as the statement of Vincent Bergin. This is a statement, the wording of which is a product of you and Paul Appleby and others in the ODCE and unknown people in the EY and A&L Goodbody [lawyers for EY],” Mr Condon said.